K.P. YOUSUF v. STATE OF KERALA & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941** ## **WP(C).No.5896 OF 2013(J)** ## **PETITIONER:** **K.P.YOUSUF AGED 67 YEARS S/O.LATE ABOOBACKER,SABIRA MANZIL,P.O.KURICHIYIL,NEW MAHE,THALASSERY,KANNUR DISTRICT-670102.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SMT.SMITHA GEORGE** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO DEPARTMENT OF HOME AFFAIRS,GOVERNMENT OF KERALA,THIRUVANANTHAPURAM,PIN695001.** - **2 THE DIRECTOR GENERAL OF POLICE THIRUVANANTHAPURAM-695001.** - **3 THE CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY ITS DIRECTOR,ERNAKULAM,THROUGH ITSSTANDING COUNSEL.** **ADDL.R4 IMPLEADED** **ADDL. NAFNAS R4 AGED 29 YEARS S/O ABDULLA, KALLINAPPURAM, AZHEEKKAL, KURICHIYIL PO, NEW MAHI, KANNUR DISTRICT, PIN-670102.** **R1 BY DIRECTOR GENERAL OF PROSECUTION SRI.P.SREEDHARAN NAIR R2 BY SRI C S HRITHWIK-SR PP R3 BY ADV. SRI.P.N.SUKUMARAN R3 BY ADV. SRI.P.CHANDRASEKHARA PILLAI C.B.I. R4 BY ADV.SRI.P.N.SUKUMARAN** **IS IMPLEADED AS PER ORDER DATED 28.02.2017 IN IA NO.2926/2017** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.09.2019, THE COURT ON 17.10.2019 DELIVERED THE FOLLOWING:** **WP(C).No.5896 OF 2013(J)** **2** ## **R.NARAYANA PISHARADI, J** ************************ W.P.(C) No.5896 of 2013 ---------------------------------------------Dated this the 17[th] day of October, 2019 ## **J U D G M E N T** This writ petition is filed under Article 226 of the Constitution of India for issuing a direction to the State Government to entrust the investigation of Crime No.515/2008 of Thalassery police station to the Central Bureau of Investigation (CBI). 2. The material averments in the writ petition are the following: U.K.Salim, the son of the petitioner, was found dead on 23.07.2008 under suspicious circumstances. A case was registered in that regard as Crime No.515/2008 of Thalassery police station. No meaningful and effective investigation has been conducted by the police in the case. The murder of the son of the petitioner is not an isolated incident. Before his death, two of his close friends by name Jijesh and Rayees were also murdered. The murders of these persons are connected with the murder of one Muhammed Fazal, who was a strong activist of Communist Party of India (Marxist). He was found murdered on 3.30 a.m on 22.10.2006. His murder was for the reason that he had left the C.P.I (M) and joined the National Democratic **WP(C).No.5896 OF 2013(J)** **3** Front. The investigation of the case relating to his murder was entrusted to the CBI as per the order of this Court. After the death of Muhammed Fazal, the son of the petitioner, Jijesh and Rayees, who were thick friends, left the CPI(M). It appears that a high level conspiracy was hatched to do away with these three persons. Jijesh and Rayees were murdered on 27.01.2008. The murder of all these three persons, including the son of the petitioner, was perpetrated by the leaders of CPI(M). The petitioner had sent Exts.P1 and P2 representations to the Home Minister seeking investigation of the case relating to the murder of his son by the CBI. The Government have not acted upon the representations sent by the petitioner. Unless an independent agency like the CBI investigates the matter, in view of the political undertones and involvement of the prominent leaders of CPI(M) in the three murders, the murder of the petitioner's son will never come to light. Soon after the murder of the son of the petitioner, the State police was trying its level best to distort the investigation in a manner pointing out to some imaginary persons as accused. The petitioner has strong belief that for leaving the Marxist party in protest against the murder of Muhammed Fazal three young activists of that party including the petitioner's son had been done away with. The police was then under the control of the Communist **WP(C).No.5896 OF 2013(J)** **4** Party of India (Marxist), whose nominee from Kannur district was the Home Minister. There were directions to the police not to conduct any meaningful investigation. The Circle Inspector of Police Sri.Suresh, who started an honest investigation and was about to nab some Communist Party of India (Marxist) workers, was immediately transferred. Similarly one of the Crime Branch officials who stumbled upon the truth was also shifted suddenly. Even the Deputy Superintendent of Police, Special Investigation team, which was constituted, was removed from the investigation solely with a view to save the workers of the Communist Party of India (Marxist). Thus there was a clear attempt by the State Government, the Director General of Police and the police machinery to topple the investigation altogether and stultify it, which has led to permitting the accused who had committed a dastardly crime go unpunished. If the investigation is done by the State Police, they are likely to hide many things than bringing the truth to light. The petitioner has strong reasons to support his feelings that it was the activists of the Communist Party of India (Marxist) in Thalassery area who have done the crime. 3. The writ petition was filed in the year 2013. As per the order dated 04.03.2013, this Court had directed the investigating officer in Crime No.515/2008 of the Thalassery police station to file a **WP(C).No.5896 OF 2013(J)** **5** statement regarding the stage of investigation of the case then. Only on 09.02.2017, the then District Police Chief, Kannur filed a statement before this Court. The material averments in this statement are the following: The investigation of the case revealed that the murder of the complainant's son is not under suspicious circumstances. The investigators had collected valuable and cogent evidence in the case. The motive and provocation for the crime disclosed in the investigation are clearly incorporated in the case diary file. There are total 8 accused persons in the case out of which A8 is a juvenile and he is absconding. There was no allegation or complaint, either oral or writing, regarding the quality of investigation or any defect of investigation, before filing of final report in the case. The writ petitioner had been questioned during the course of investigation on 02.08.2008. As per his statement, he had only hearsay information about the incident and he had not raised any complaint or doubt about the investigation. The case was registered on the basis of the statement given to the police by Nafnas, who was also injured in the same incident. On the basis of the statement furnished by Nafnas to Sri.V.K.Sudhakaran, Sub Inspector of Police (Addl), Thalassery on the same night at 00.20 hours, case was registered at Thalassery Police Station as Cr.No.515/2008 under Sections 143, 148, 341, 324 and 302 **WP(C).No.5896 OF 2013(J)** **6** r/w 149 IPC. The initial investigation of the case was conducted by Sri.M.V.Sukumaran, Circle Inspector of Police, Thalassery from 24.07.2008. During the course of investigation, it was revealed that, the accused A1 to 8 were involved in the incident. The investigation was completed by Sri.U.Preman, Circle Inspector of Police, Thalassery and charge sheet against accused A1 to A7 was submitted before the Judicial First Class Magistrate Court,Thalassery on 31.08.2009. Since accused No.A8 was a juvenile, charge sheet against him was filed before the Principal Juvenile Court, Thalassery. The case was committed to the Court of Session, Thalassery and it is pending trial as S.C No.471/2011. The investigation clearly revealed the facts circumstances and the motive of the crime. The investigation of the case was conducted by Sri.M.V.Sukumaran, Sri.M.P.Vinod and Sri.U.Preman. The case was never investigated by a Circle Inspector of Police by name Sri.Suresh. The averment in the writ petition that officers have been shifted to prevent effective investigation is absolutely incorrect. There was no deviation of investigation from the original track at any point of time. Efficient investigation was conducted and enough evidence against accused has been collected. There is no need for the investigation by other agencies, that too, at this belated stage. During the course of investigation, A1 C.K.Latheef **WP(C).No.5896 OF 2013(J)** **7** @ Kozhi Latheef was arrested on 29.07.2008 by Circle Inspector Sri.M.V.Sukumaran and a double edged pointed knife was recovered on 06.08.2008 under Section 27 of the Evidence Act. A2 K.V.Latheef @ Government Latheef and A3 Kunhu @ Abdulla were arrested by Circle Inspector M.V.Sukumaran on 19.8.2008 and an iron rod was recovered as per the confession statement of that accused. A4 Sameer, A5 Nazeer @ Nachu, A6 Muhammad Hisham and A7 Shabil surrendered before the Judicial First Class Magistrate's Court, Thalassery. A8 Sayees was juvenile and he absconded during the investigation of the case. The medical officer who conducted the autopsy was questioned. He had examined the weapon recovered and he has opined that the injury can be caused by the weapon shown to him. The case is ripe for trial. The petitioner has not put forward any tenable and cogent grounds, warranting investigation by the CBI at this distant point of time. 4. Nafnas, the person who got injured in the incident, has got himself impleaded as additional fourth respondent in the writ petition. In the affidavit filed in support of the application for impleading, it is stated by him that he was injured in the incident and that the deceased Salim was with him at the time of the occurrence. It is stated by him that the writ petition is filed by the petitioner along with **WP(C).No.5896 OF 2013(J)** **8** the accused in the case with the intention to save them and to delay the trial in one way or other. 5. Heard Sri.K.Ramakumar, learned senior counsel who appeared for the petitioner and the learned counsel for the fourth respondent and the learned Public Prosecutor. Heard also the learned Standing Counsel for the CBI. 6. The prayer for entrusting the investigation of the case to the CBI is made by the petitioner mainly on the basis of his apprehension that no meaningful and effective investigation has been conducted in the case. The sole basis of such apprehension is his belief that his son was murdered by the activists of CPI(M), pursuant to a high level conspiracy and also that the police was under the control of the CPI(M), whose nominee was then the Home Minister. However, the statement filed by the District Police Chief, Kannur, prima facie, reveals that effective investigation was conducted in the case by the Crime Branch. The petitioner has not filed any counter statement or counter affidavit controverting the averments in the statement filed by the District Police Chief, Kannur. In such circumstances, it cannot be found that there was no effective investigation conducted in the case. **WP(C).No.5896 OF 2013(J)** **9** 7. There is yet another aspect which is significant. The son of the petitioner was murdered on 23.07.2008. After the investigation of the case, charge sheet was filed in the competent court on 31.08.2009. The case was committed to the Court of Session, Thalassery in the year 2011 and it is pending before that Court as S.C.No.471/2011. The petitioner filed this writ petition only on 01.03.2013. During a period of more than 3½ years after the filing of the charge sheet, the petitioner had no grievance that the investigation conducted in the case by the police was not effective. Even Ext.P1 representation to the Government, seeking investigation of the case by the CBI, was sent by the petitioner only on 18.12.2012. 8. Learned counsel for the additional fourth respondent has strongly objected to the handing over of the investigation of the case to the CBI. The petitioner does not dispute the fact that the fourth respondent is a person who has got injured in the same incident. It is on the basis of the statement given by the fourth respondent to the police that the case was registered. Learned counsel for the fourth respondent has contended that handing over the investigation of the case to the CBI, at this distant point of time, would only spoil the entire case and it would cause prejudice to the fourth respondent. There is considerable force in his contention. **WP(C).No.5896 OF 2013(J)** **10** 9. Learned Standing Counsel for the CBI submitted that no useful purpose would now be served by entrusting the investigation of the case to the CBI more than eleven years after the occurrence of the murder. There is considerable force in this submission also. 10. It is not proper and expedient to entrust the investigation of a case to the C.B.I, long after the filing of the charge sheet in the competent court (See **Saravanan Karuppasamy v. State of Tamil Nadu : AIR 2015 SC 214** ). 11. The investigation having been completed by the police and charge sheet submitted to the court, it is not for, ordinarily, to reopen the investigation specially by entrusting the same to a specialised agency like C.B.I (See **Gudalure M.J.Cherian v. Union of India : (1992) 1 SCC 397** ). 12. Transfer of the investigation to the Central Bureau of Investigation or any other specialised agency, notwithstanding the filing of the charge sheet, would be justified only when the Court is satisfied that on account of the accused being powerful and influential, the investigation has not proceeded in a proper direction or it has been biased (See **Sudipta Lenka v. State of Odisha : AIR 2014 SC 3418** ). **WP(C).No.5896 OF 2013(J)** **11** 13. In an appropriate case, when the Court feels that the investigation by the police authorities was not in the proper direction and in order to do complete justice in the case, it is always open to the Court to hand over the investigation to an independent agency like C.B.I. It cannot be said that after the charge sheet is submitted, the Court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like C.B.I. (See **Rubabbuddin v. State of Gujarat : AIR 2010 SC 3175** ). 14. True, there is no absolute bar to entrust the investigation of a case to the C.B.I, even after the filing of the charge sheet. Even after filing the charge sheet, in an appropriate case, the High Court can invoke its extraordinary jurisdiction under Article 226 of the Constitution of India to transfer the investigation to another agency. But, such power has to be exercised cautiously, sparingly and only in exceptional circumstances. In **K.V.Rajendran v. Superintendent of Police : (2013) 12 SCC 480** , a three Judge Bench of the Supreme Court has summaraized the law in this regard as follows: _“The issue involved herein, is no more res integra. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation_ **WP(C).No.5896 OF 2013(J)** **12** _must be in rare and exceptional cases where the Court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. Where the investigation has already been completed and charge sheet has been filed, ordinarily superior Courts should not reopen the investigation and it should be left open to the Court, where the charge sheet has been filed, to proceed with the matter in accordance with law. ..... In view of the above, the law can be summarised to the effect that the Court could exercise its Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. Such as where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or where the investigation is prima facie found to be tainted/biased”._ 15 _._ In the case at hand, there are no exceptional circumstances to entrust the investigation of the case to the CBI notwithstanding the fact that the chargesheet in the case was filed more than ten years ago and that the trial of the case is scheduled to commence in the **WP(C).No.5896 OF 2013(J)** **13** competent court. Even now, the petitioner has got no specific ground to seek investigation of the case by the CBI except that it is a politically engineered case by the CPI(M). ## 16. In **State of West Bengal v. Committee for Protection of Democratic Rights: AIR 2010 SC 1476** , a Constitution Bench of the Supreme Court has held as follows: _“We deem it necessary to emphasise that despite wide powers conferred by Art.32 and Art.226 of the Constitution, while passing any order, the Courts must bear in mind certain self - imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited_ **WP(C).No.5896 OF 2013(J)** **14** _resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations”._ 17. In the case at hand, I find that there are no exceptional or extraordinary circumstances for issuing a direction for entrustment of the investigation of the case to the CBI, more than ten years after the filing of the charge sheet in the case by the Crime Branch in the competent court. The petition is liable to be dismissed. Consequently, the petition is dismissed. Sd/- **R.NARAYANA PISHARADI, JUDGE** jsr **WP(C).No.5896 OF 2013(J)** **15** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF REPRESENTATION DATED 18.12.2012 BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR HOME AFFAIRS. EXT.P2: COPY OF REPRESENTATION DATED 04.02.2013 BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR HOME AFFAIRS.** **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** **LSN**